Middleton & Arment v. Yuen Gan

— Order, Appellate Term of the Supreme Court, First Department, entered September 14, 1987, which affirmed a judgment of the Civil Court, New York County (Alice Schlesinger, J.), entered July 10, 1986, after trial, awarding petitioner landlord possession of the storefront area of premises at 415 West 47th Street in Manhattan, unanimously reversed, on the law, the judgment vacated and the petition dismissed, without costs and without prejudice to further judicial review after determination of such further proceedings as petitioner may be advised to initiate before the New York State Division of Housing and Community Renewal (DHCR). Respondent tenant moved into the premises in 1939 and took occupancy without a lease. The storefront portion of the premises was a laundry and the rear portion, which was separated by a partition, contained a bedroom, kitchen and bathroom. The tenant operated the laundry in the front portion of the premises and resided in the rear continuously until 1983, when, because of advanced age and poor health, he ceased operating the laundry. Petitioner acquired the building 59 in 1985 and commenced a dispossess proceeding, which resulted in the Civil Court finding, after a nonjury trial, that the storefront portion of the premises had been used and maintained as a commercial unit separate and apart from the residential unit since the inception of the respondent’s tenancy and that petitioner was entitled to terminate the commercial tenancy on 30 days’ notice. It is now well established that where, as here, there is a question of fact concerning whether the premises at issue are being utilized for mixed residential and commercial use, the matter must be referred for determination, in the first instance, to the DHCR. (3849 Assocs. v Bonime, 137 AD2d 448; see, Confederated Props. v Nosek, 2 AD2d 383; Swift v 130 W. 57th Corp., 31 AD2d 925.) Concur — Kupferman, J. P., Sullivan, Milonas and Rosenberger, JJ.